Pakistan Govt moves “Kulbhushan specific ordinance” at Parliament

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Law Minister Farogh Nasim defends govt’s move rejecting opposition allegations

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Nation special feature

In a new move of apparent facilitation for the Indian national Kulbhushan Jadhav (convicted in spy case), the Pakistan Government has put a new law before parliament for approval that will allow him to approach a high court for the review of the death penalty awarded him by a military court in 2017.

Kulbhushan Jadhav was arrested in March 2016 in Pakistan’s southwestern province of Balochistan, the site of a long-running conflict between security forces and separatists. He was convicted of planning espionage and sabotage and sentenced to death by a military tribunal the following year. 
Pakistani opposition parties have criticized the government for “facilitating” Jadhav through the special law. The government says the new ordinance will effectively block India from going to the UN Security Council against Pakistan.

Adviser to the Prime Minister on Parliamentary Affairs, Babar Awan, presented the bill in the House on Monday, called the International Court of Justice (Review and Reconsideration) Ordinance, 2020, before the National Assembly for approval. “In no way has the national interest or security been compromised by the promulgation of this ordinance,” Babar Awan told media commenting;. “Therefore, the political hullaballoo is not justified or fair.”

India has termed its national Kulbhushan Jadhav as innocent. Last year the World Court of Justice ordered Pakistan to review the death penalty for Jadhav.

Kulbhushan Jadhav

On July 22, the Pakistan government approached the Islamabad High Court to appoint a legal representative for the Indian spy. According to the petition, Jadhav has refused to file a petition against his sentence. 
The Indian national, arrested and convicted against spy charges cannot appoint a lawyer in Pakistan without India’s assistance, and Delhi is reluctant to avail the review facility under the ordinance, it is claimed in the petition.

The government has thus asked the court to appoint a legal representative for Jadhav so that Pakistan can fulfil its responsibility to implementation the ICJ’s decision.

On July 17, Pakistan offered Jadhav consular access for a third time.
Pakistan authorities have claimed that Kulbhushan Jadhav has confessed to being ordered by India’s intelligence service to conduct espionage and sabotage in Balochistan, a province at the center of a $60 billion Chinese-backed “Belt and Road” development project being carried at full fledged level.

In a transcript released by Pakistan of what it says is Jadhav’s confession, the former naval officer says disrupting the Chinese-funded projects was a main goal of his activities. The controversial ordinance aimed at allowing Kulbhushan Jadhav to have consular access in line with the International Court of Justice (ICJ) amid mysterious silence of the opposition which had previously prevented it from doing so through a strong protest and boycott of the proceedings.

Shahida Akhtar Ali of the Jamiat Ulema-i-Islam-Fazl (JUI-F) talked about the controversial ordinance and criticised the government for facilitating the Indian national. He was of the view that the government is providing this facility to “an Indian spy weeks before the first anniversary of the forceful annexation of occupied Jammu and Kashmir by India on Aug 5”.

Pakistan Peoples Party (PPP) chairman Bilawal Bhutto-Zardari, who had forcefully opposed the government’s move to lay the ordinance before the assembly last week and even announced the boycott of the proceedings on Thursday to block the laying of the ordinance, entered the house when Babar Awan had already laid the ordinance.

Bilawal Bhutto spoke on other issues but did not touch Jadhav case. He had said on Thursday that the opposition’s conscience did not allow them to let the session continue with the ordinance on its agenda. But this time he only requested Speaker Asad Qaiser to defer the legislative business and bring these bills to the house with a consensus.

Law Minister Farogh Nasim

The PPP chairman said the opposition was ready to cooperate with the government on the legislations needed to fulfil the conditions of the Financial Action Task Force (FATF) against terrorism and regarding the National Action Plan, but since the speaker had already constituted a special committee, the bills should only be introduced after developing a consensus.

But the speaker overruled his objection, saying that introduction of the bills was a requirement under rules after which these bills would definitely go to the committees concerned for discussion.

While opposing the ICJ (Review and Reconsideration) Ordinance, the opposition had questioned the government’s move to “facilitate” a “declared terrorist” — who was caught from Balochistan in 2016 and then convicted by a military court in April 2017 after his confession — and equated the new ordinance with the “NRO” (National Reconciliation Ordinance) issued by former military dictator Gen Pervez Musharraf as part of a deal with the PPP in 2007 to end cases against politicians.

Bilawal Bhutto had also rejected the explanation later given by Law Minister Farogh Naseem in the assembly and addressing a news conference he had challenged the government to get the law passed from parliament without the opposition’s support.

Law Minister clarifies ordinance

Earlier, on Friday (July 24), the Law Minister Barrister Farogh Naseem appeared in the National Assembly to explain the government’s stance on the controversial legislation aimed at allowing Kulbhushan Jadhav to have consular access and asked the opposition to support the ordinance which, he said, had been issued in line with the 2017 judgement of the International Court of Justice (ICJ) and to demonstrate that Pakistan is a responsible state.

Rejecting the opposition’s criticism of the government’s move, the minister defended the promulgation of the ICJ Review and Reconsideration Ordinance 2020 and stated that the ordinance was needed to follow the ICJ verdict as well as demolish India’s plan to move the United Nations Security Council (UNSC) against Pakistan.

The minister came to the house to give the explanation a day after the opposition through a strong protest and boycott of the proceedings prevented the government from laying the controversial ordinance, alleging that the government had promulgated it secretly to appease India.

Though the minister at the end of his speech requested the opposition to allow laying of the ordinance before the house, Speaker Asad Qaiser deferred the issue and adjourned the sitting till Monday evening without providing an opportunity to the opposition to respond to the minister’s speech.

It may be recalled that the parliamentary leader of the Pakistan Muslim League-Nawaz (PML-N) and Pakistan Peoples Party (PPP) chairman Bilawal Bhutto-Zardari had on Thursday forcefully opposed the government’s move to lay the ordinance, terming it “intolerable, unacceptable and against the national prestige”.

In his hard-hitting speech, Mr Bhutto-Zardari had equated the new ordinance with the “NRO” (National Reconciliation Ordinance) issued by former military dictator Gen Pervez Musharraf as part of a deal with the PPP in 2007 to end cases against politicians.

The law minister, however, denied that the ordinance was similar to the NRO under which Gen Musharraf had pardoned sentences and suspended the pending proceedings against the politicians. “This ordinance has not forgiven Jadhav’s sentence. It is not an NRO… nor an appeal. It proves Pakistan is a responsible state and will try to fulfil all its obligations,” the minister said, adding that had the ordinance been issued to pardon the Indian spy’s sentence, he would have been protesting over it with the opposition.

Barrister Naseem said it was India’s desire to see Pakistan not following the ICJ judgement so that it could “approach the UNSC for bringing all kinds of resolutions and sanctions and to declare Pakistan a rogue state”. “We cut off India’s hands by bringing this ordinance. Pakistan has done this responsibly.”

Quoting from the ICJ judgement, the law minister said the ICJ had placed an obligation on Pakistan by deciding that the country would have to grant consular access to Kulbhushan Jadhav and review and reconsider the case. He said the ordinance had been drafted in line with paragraphs 144-148 of the ICJ verdict that had placed the obligation on the country to enact a law for effective review and reconsideration of the case.

The minister said that when Jadhav was arrested on March 3, 2016, the then federal government [of the PML-N] had taken a decision that the consular access could not be given to him as he was found guilty of espionage.

“I am not playing a blame game but Pakistan could have expressed reservations, gotten out of optional protocol and jurisdiction of the ICJ verdict. But this did not happen and [the government] exercised its discretion,” he added.

The second important date, he said, was May 8, 2017, when India had filed a case in the ICJ. “When they filed the case, it was a cut-off date. After that, Pakistan could not come out of ICJ’s jurisdiction,” he said, adding that the judgement had stayed Jadhav’s conviction but rejected the Indian prayer that he should be freed.

Responding to an allegation that the government did not inform the opposition or parliament before promulgating the ordinance, he said there was no such provision in the Constitution. “There is no clause that says the opposition and parliament have to be taken into confidence first,” he said, adding that in the past the PPP and PML-N governments had promulgated numerous ordinances without consulting the opposition.

Terming it a “sensitive high security issue”, he asked the opposition not to do politics on it. This ordinance, he said, was published in the gazette on May 21 and the Supreme Court had already declared that anything published in the gazette became a notice to the public at large.

The law minister said this ordinance stated that Jadhav himself or a representative from the Indian High Commission could file an appeal on his behalf. Interestingly, the minister himself called it a Kulbhushan ordinance, but later stated that it was not person specific.

“It is for the future as well so that if a similar situation arises in the future, the state concerned does need not file a case in the ICJ but approaches the Islamabad High Court instead,” he explained.